ICE workplace raids in New Jersey are on the rise. The New Jersey ICE field office is reportedly expected to make an increasing number of arrests of undocumented immigrants. Additionally, the recently passed Laken Riley Act makes it easier for ICE officials to detain undocumented immigrants charged with crimes.

Your business may be subject to a raid or a Form 1-9 audit by ICE officials.  Therefore, we at the Bianchi Law Group have provided you with valuable information on the law, and tips on how to prepare for, and respond to ICE searches and audits.   

I. An ICE Raid

The Law on ICE Searches of Business Premises

  • ICE agents may conduct a raid on a workplace without any warning. ICE agents may wear uniforms that say “Police” or “Federal Agent, they may carry guns, and they may be accompanied by local police officers. ICE agents may enter public areas of the business premises without a warrant but need a judicial warrant to enter private areas.
  • Public Areas. Anyone, including ICE agents, are allowed to enter the public areas of a business without a warrant. Public areas may include, among other areas, lobbies, reception areas, parking lots, waiting rooms, and cafeterias. A warrant is not required to enter these areas because individuals do not have a reasonable expectation of privacy under the Fourth Amendment in public areas.
  • Private Areas. However, ICE agents need a valid judicial search warrant or the business owner’s consent or permission to access private areas. A valid search warrant must be signed and dated by a judge, and must describe with particularity the places subject to search and the people or objects subject to seizure. (See attached example of a judicial search warrant). ICE agents may only search those areas specifically described in the warrant and may not search other areas of your premises without your permission or consent. You are not required to consent to the search of your premises or to a search beyond the area designated in the warrant. You can accept the warrant but still decline to consent to the search, thereby allowing you to contest the search later.
  • Administrative warrants issued by the Department of Homeland Security (DHS) are also often used during an ICE raid. However, ICE agents are not allowed to enter private areas with an administrative warrant without your permission—ICE must present a judicial warrant to search private areas. Administrative warrants are captioned “US Department of Homeland Security” (see sample attached). Administrative warrants are not signed by a judge, they are signed by an authorized immigration official and they are issued for the arrest and removal or deportation of an individual, not a search of the premises.

What should you do to prepare for an ICE raid?

  • Designate a company representative (e.g., the owner of the business) to serve as the primary contact person with the ICE agents during and after a raid.
  • Establish policies/procedures for communicating with ICE agents. Receptionists and front office staff might be trained to say, “I can’t give you permission to enter. You must speak with my employer.” You may also want to mark private areas with signs designating those areas as “private” and/or lock the doors to these areas.
  • Show your front office staff the example of a judicial search warrant, which allows ICE to search private areas, and the example of an administrative arrest warrant, which does not.

What should you do during a raid?

  • All employees should stay calm, do not run, do not lie, and do not provide any false information.
  • Upon entry by the ICE agents, your front office staff should immediately contact your designated representative, who should then immediately contact your counsel.
  • Your designated representative should: 1) ask for identification and record the ICE agents’ names and badge numbers; 2) ask if they have a warrant and if they do, read it to confirm it is signed and dated by a judge, includes a time frame, describes the premises, and lists the items to be searched and seized; 3) follow the ICE agents and document what they are doing by taking notes and/or recording a video; 4) list any items taken; 5) unlock any locked areas covered by the warrant if requested by the ICE agents; and 6) object, but do not interfere, if the agents search your premises beyond the scope of the warrant.
  • During the raid, ICE agents may ask to speak with your employees or move them into different areas or rooms to do so. You should not interfere with their attempts to speak with your employees. However, you do not have to assist the ICE agents by sorting people by their immigration status or the country they are from, or by identifying any specific employees.
  • Employees can choose whether to speak to ICE agents, and if they do, anything they say can later be used against them.

II. ICE Form 1-9 audit

  • ICE agents may also notify you that they intend to conduct a Form I-9 audit (Employment Eligibility Verification) of your business. Form I-9 is required for all new employees, verifying that your employees are authorized to work in the United States. You must use the current version of Form I-9, which you can download along with the instructions from the Unites States Citizen and Immigration Services (USCIS) website. The Employer Handbook for filling out the form can be found at https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274
  • Upon receipt of an audit notification, you should immediately contact an immigration lawyer. You have three workdays to produce the forms, and you have the right to speak to counsel before answering questions or signing ICE documents. Additionally, you should allow your employees to have coworkers or union representatives present when discussing I-9 audits.

At the Bianchi Law Group we strive to provide our friends, family and strategic partners with helpful and up-to-date information on the ever changing law.  We are available to provide immediate assistance and further counsel at 862-315-7929.

No aspect of this attorney advertisement has been approved by the Supreme Court of New Jersey. This communication is for informational purposes only and does not constitute legal advice. Reading this material does not create an attorney-client relationship. The outcome of any legal matter depends on the specific facts and legal issues involved. Past results do not guarantee future outcomes. If you need legal assistance, please contact us to schedule a consultation with one of our attorneys.

Other Resources

https://www.nilc.org/resources/a-guide-for-employers-what-to-do-if-immigration-comes-to-your-workplace/

https://www.aclu.org/know-your-rights/immigrants-rights

https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274